Rule 68 of the Federal Rules of Civil Procedure applies generally where a non-moving party's settlement offer is rejected, and the court judgment awarded to the moving party, or claimant, is for less than the prior offer. The non-moving party may then be entitled to "costs incurred after the making of the offer." In Marek v. Chesny, the Court made it clear that "costs" includes attorney's fees. Congress should consider revising Rule 68 to clarify its application. However, Rule 68 appropriately induces plaintiffs to thoroughly consider a defendant's offer, under threat that rejection of the offer may include reducing attorney's fees in any future court judgment.
John P. Woods,
For Every Weapon, a Counterweapon: The Revival of Rule 68,
14 Fordham Urb. L.J. 283
Available at: http://ir.lawnet.fordham.edu/ulj/vol14/iss2/1